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Understanding the new refugee determination system in Canada

On December 15, 2012, the system for determining refugee claims made in Canada underwent significant changes as a result of the coming into force of the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act, the latter of which amends both the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act.

The Immigration and Refugee Board of Canada (IRB) has as a result significantly altered its operations and procedures to meet these legislated changes, starting with a new Refugee Protection Division (RPD) and Refugee Appeal Division (RAD). The IRB will continue, as stated in the Government’s Press Release, "to resolve immigration and refugee cases efficiently, fairly and in accordance with the law."

To address the provisions of the new legislation and accompanying regulations, the IRB has developed new Chairperson’s rules for both the RPD and the RAD and has updated and revised many of its forms and documents as well.

Claims at a port of entry

At points of entry into Canada the newly created Basis of Claim or BOC Form, which replaces the old Personal Information Form (PIF), needs to be filed with IRB within 15 days of eligibility. The Claimant will get the BOC after the Citizenship and Immigration Canada (CIC) documents are completed and claim found eligible. The BOC is required to be filed with the Immigration and Refugee Board within 15 days and hearing will be set within the time lines set for making refugee claims.

For refugees from Designated Countries of Origin (DCO’s) hearings are to be held within 30 – 45 days after referral of the claim to the Immigration and Refugee Board of Canada (IRB). For refugees from Non-Designated Countries claims are supposed to be held in a 60-day time frame. If the BOC is not filed within 15 days, the claimant will be required to appear for an Abandonment Hearing to explain why their BOC and other required documents were not filed within the 15 Day Time limit.

Applying for refugee protection from within Canada

For refugee claims made in Canada all documents including the Basis of Claim (BOC) are filed with the CIC office where the claim is made.

CIC requires that, in addition to the BOC, claimants must submit a Document Checklist (IMM 5745); the Generic Application Form (IMM 0008), Schedule A – Background Declaration; Additional Information (IMM 0008 – Schedule 12). If you are using a lawyer, or an approved Consultant, you also need to file a Use of a Representative Form (IMM 5476). Also required are four passport sized photos of every claimant, identity documents and other documents that support the claim. All documents in a foreign language must be translated into English or French. CIC is requiring that an application for permanent residence be made along with the BOC.

Designated countries of origin

Minister of Citizenship Immigration and Multiculturalism Jason Kenney's announcement on December 14, 2012 on Designated Countries of Origin (DCO) has created a second class of refugee claimants. The ability to designate such countries and accelerate the processing of these asylum claims provides the government with a tool to respond to spikes in claims from countries that do not normally produce refugees.

All failed claimants continue to have the option of asking the Federal Court to review a negative decision. However, there will be no automatic stay of removal for DCO claimants should they ask the Federal Court to review a negative decision, which means that they could be removed from Canada while their application for review before the Federal Court is pending. In these circumstances, failed claimants can ask the Federal Court to stay the removal.

According to Kenney, “large numbers of unfounded asylum claims are a financial burden on Canadian taxpayers. Canada’s social assistance programs and other generous benefits are a draw for many.”

The Conservative government’s plan is to further reduce the attraction of coming to Canada to make an unfounded claim. DCO claimants will be ineligible to apply for a work permit until their claim is approved by the IRB or their claim has been in the system for more than 180 days and no decision has been made.

Restricting access to work permits will deny DCO claimants access to Canada’s labour market as well as the benefits associated with employment in Canada (such as the Goods and Services tax credit, the Working Income Tax Benefit and employment insurance – none of which can be accessed by claimants who do not have a work permit.)

Many countries use a similar authority in what is commonly known as a “safe country of origin” policy to accelerate asylum procedures for the nationals of certain countries. These states include the United Kingdom, Ireland, France, Germany, the Netherlands, Norway, Switzerland, Belgium and Finland, among others. Some European Union (EU) states also have accelerated procedures for the nationals of other EU member states.

Designation as a Country of Origin is not automatic. Countries are triggered according to either quantitative or qualitative criteria and are then reviewed, which may lead to a designation.

Quantitative thresholds are stipulated in the Ministerial Order as follows:

combined rejection, withdrawal and abandonment rate of asylum claims at the IRB of 75% or higher; or combined withdrawal and abandonment rate of asylum claims at the IRB of 60% or higher. Quantitative triggers will apply for countries having at least 30 finalized claims in any consecutive 12-month period in the three years preceding designation. If a country meets one of these triggers, it will be reviewed for potential designation.

For countries that do not reach a minimum of 30 claims finalized in any consecutive 12-month period during the three years prior to designation, qualitative criteria are stipulated in legislation.

According to the Government Press Release countries must meet each of the following triggers in order to be reviewed for potential designation: existence of an independent judicial system; recognition of basic democratic rights and freedoms, including mechanisms for redress if those rights or freedoms are infringed; and the existence of civil society organizations.

Although countries triggered according to qualitative criteria generally produce few asylum claimants, it may still be appropriate to designate them under the principle that they are generally not considered to be refugee-producing countries.

If a country does not meet any of these triggers, it cannot be designated. And even if a country meets all of these triggers, it is not automatically designated. Countries that meet either quantitative or qualitative triggers then undergo a review in consultation with other Canadian federal government departments.

The review examines a select set of criteria, specifically: democratic governance; protection of right to liberty and security of the person; freedom of opinion and expression; freedom of religion and association; freedom from discrimination and protection of rights for groups at risk protection from non-state actors (which could include measures such as state protection from human trafficking); access to impartial investigations; access to an independent judiciary system; and access to redress (which could include constitutional and legal provisions).

The Minister of Citizenship, Immigration and Multiculturalism makes the final decision on whether to designate a country. Every eligible refugee claimant, including those from a designated country of origin, will continue to receive a hearing at the IRB.

The following countries have been designated DCO’s effective December 15, 2012:

It is not entirely clear why these countries were deemed DCO’s and set for faster treatment of refugee claims and denied the right to the Refugee Appeal Division and other restrictions including the denial of Work Permits.

Countries such as Monaco, Norway, Switzerland and Vatican City were not presently included in the current DCO list.

Many refugee advocates have criticized the inclusion of the Czech Republic, Hungary and the Slovak Republic where the Roma people have claimed they are suffering severe discrimination and even persecution.

There are at least 16 decisions of the Federal Court of Canada in 2012 that have over turned decisions of the IRB on Roma cases and sent them back for a re-determination.

These changes are going to have a dramatic impact on refugee claims made in Canada. The Canadian refugee system was once considered a model for the world. However, it is important to note that Canada’s refugee system was being abused by some individuals who were not true refugees. The rush to determine who is a real refugee, and who is not, is going to make the decision process faster but also more prone to errors.

The use of the Designated Country of Origin approach will certainly help reduce some abuse but also fails to address the problems of Roma refugees who do face severe discrimination and even persecution in parts of Eastern Europe. It also remains to be seen how effective and fair the new system will be in its implementation and also how the new Refugee Appeal Division handles rejected claims sent to that body for review. In the end it is how fair refugees are treated under the new “faster” system that will determine if these changes are justified.

Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada.

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